Delhi High Court
Gadadhar Panda vs The State & Anr. on 30 August, 2019
$
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 15.07.2019
Judgment Pronounced On: 30.08.2019
CRL.A.1199/2012
Gadadhar Panda ..... Appellant
Versus
The State & Anr. ..... Respondent
Advocates who appeared in this case:
For the Appellant : Ms. S.R.Pandey and Mr.
A.K.Pandey Advocates.
For the Respondents : Ms. Radhika Kolluru, APP for
State.
Mr. Alok Bhachawat, Mr. Uday
Singh and Mr. S.Jeeva Nandan, `
Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE BRIJESH SETHI
JUDGMENT
BRIJESH SETHI, J
1. The appellant has instituted the present appeal under section
372 of the Code of Criminal Procedure, 1973 (hereinafter referred
to as „Cr.P.C‟) read with section 482 Cr.P.C. against the impugned
judgment dated 30.07.2012 passed in Sessions Case No. 50/2012,
arising out of FIR No.473/2007 (hereinafter referred to as the
„subject FIR‟), registered at Police Station -Kalkaji; whereby the
Trial Court has acquitted the appellant Dev Prasad Giri (hereinafter
referred to as „the respondent no. 2‟) of a charge framed against
him under section 498A/304B/34 Indian Penal Code, 1860.
2. Before going into the merits of the present appeal, it is
relevant to recapitulate the brief facts of the present case which are
as follows:
„On 20.05.2007, at about 9.59 a.m., DD No. 4A
was handed over to SI Balbir Singh and he along
with Ct. Dharam Singh reached at the spot i.e.
H.No. 1680-C/3, 1st Floor, Govind Puri Extn.,
Delhi where they saw a lady lying dead on the bed
with ligature marks on her neck. The name of the
lady was revealed as Pratibha. Appellant Dev
Prasad Giri was found present at the spot and told
the IO that said lady is his wife and she had
hanged herself from the ceiling fan and he had
brought down the dead body from hanging
position. No suicide note was found at the spot.
IO informed the crime team as well as SDM. IO
informed about the present incident to the parents
of victim and thereafter on the next date i.e. on
21.05.2007, Gadadhar Panda (father of the
victim), Ms. Kanchan (mother of the victim) and
Suryakant Panda (brother of the victim) reached
Delhi and they were produced before SDM on
22.05.2007 where statement of Gadhadhar Panda
was recorded before the SDM.
In his statement, Sh. Gadadhar Panda (father of
the victim) stated that his daughter Pratibha
Panda was married with accused Dev Prasad Giri
on 06.07.2003. He alleged that at the time of
marriage, in-law of his daughter demanded the
money of Rs. 3,00,000/- in dowry and on his
request, they agreed to take Rs. 2,50,000/-. He
further deposed that he had given Rs. 2,50,000/- by
way of six demand drafts and apart from that, the
accused and his family also demanded furniture
and he fulfilled their demand by taking money from
his relatives. He has further stated that her
daughter was subjected to cruelty for demand of
dowry. On 20.05.2007, he received information
that his daughter has committed suicide and this
information was given to them by accused Dev
Prasad Giri.
After his statement, recorded by SDM, IO took the
bed sheet in possession with which she was
hanged. Crime team arrived at the spot and took
some photographs. IO seized the jewellery items
which were on the body of the victim and also
seized one small size purse. One gold chain with Z
type locket, two gold kundal and two ear rings, one
gold ring on which thread was wrapped, one gold
ring on which white colour stone was fixed, one
ring with diamond, two gold bangles, one pair
silver paijeb, one silver ring with white stone, four
artificial bangles, one ICICI Visa card and one
leather bag were also seized by the IO. On the
basis of statement of Gadadhar Panda, recorded
by the SDM, the FIR in the present case was
registered under Section 498A/304B IPC on
22.05.2007.
On 23.05.2007, IO Insp. Sunder Lal got conducted
the post mortem on the dead body of deceased. IO
also recorded statement of Gadhadhar Panda
(father of deceased), Smt. Kanchan Bala (mother
of deceased) and Surya Kant Panda (brother of
deceased). IO had also taken into possession
photocopies of six bank drafts of total Rs.2.50 Lac
and marriage invitation card.
Appellant Dev Prasad Giri was arrested on
23.05.2007 and his personal search was also
conducted. On 29.05.2007, the postmortem report
of deceased was obtained. IO also received six
pages of Oriya language along with its translated
copy in English and one CD and one marriage
invitation card and on 19.06.2007 again two
photographs were received. On 19.06.2007, the
Viscera was sent to FSL-Rohini through Ct.
Rajpal. Accused Sneh Lata Giri and Siba Prasad
Giri could not be arrested and they were declared
PO. After completion of the investigation, charge-
sheet against the appellant was filed before the
Court of Ld. MM for the offences punishable under
Sections 498A/304B IPC was filed and the matter
was committed to Ld. Sessions Court as the
offences involved in the present case were sessions
triable.
On 24.07.2008, the supplementary charge was
received by Sh. V.K.Bansal, the then Ld. ASJ, and
the same was clubbed with the main charge sheet
vide order dated 24.07.2008 wherein both the
accused Sneh Lata Giri and Siba Prasad Giri were
declared proclaimed offender.‟
3. Vide impugned judgment dated 30.07.2012, passed by Sh. Lal
Singh, Ld. ASJ-02/FTC, New Delhi District, Patiala House Courts,
appellant Dev Prasad Giri was acquitted for the offence punishable
under section 498A/304B IPC and file was ordered to be consigned
to Record Room with direction to reopen the same as and when co-
accused persons namely Sneh Lata Giri and Siba Prasad Giri, who
had been declared proclaimed offenders, are arrested or surrender
before the court.
4. Aggrieved by the impugned judgment dated 30.07.2012, Sh.
Gadadhar Panda, appellant/father of the victim, filed the present
appeal and has argued that Ld. Trial Court has misappreciated the
testimony of material witnesses PW-2 Gadadhar Panda, PW-5 Ms.
Kanchan, PW-8 Surya Kant Panda and PW-9 Alekh Chander Behra,
who have categorically deposed that there was demand of dowry
and deceased was subjected to cruelty for non-fulfilling of the said
demand and as a result of such cruelty, she died an unnatural death.
He has argued that demand of dowry had started right from the
beginning of the marriage and continued till the death of the
deceased Pratibha Panda.
5. Learned counsel for the appellant has argued that learned
Trial Court erred in coming to the conclusion that there was no
demand of dowry and no cruelty was committed upon the deceased
by the respondents for non fulfilling the said demand. PW-2
Gadadhar Panda, PW-5 Ms. Kanchan, PW-8 Surya Kant Panda and
PW-9 Alekh Chander Behra have categorically stated that there
was demand of dowry and a sum of Rs. 2,50,000/- was paid to the
father of the respondent no.2 by way of demand drafts.
6. It was further argued that learned Trial Court failed to
appreciate the evidence of PW-5 Ms. Kanchan who deposed that
she had received a telephone call from her daughter on 19.05.2007,
i.e., just a day before her death and told her that she was beaten by
her husband and she was also tried to be strangulated.
7. Learned Counsel has next argued that there were other
incidents of demand of dowry and cruelty dated 15.04.2007 and
15.05.2007. The learned Trial Court has, however, ignored the same
and wrongly acquitted respondent no. 2.
8. Learned counsel has further argued that despite the fact that
all ingredients of section 304B of IPC were fulfilled, the learned
Trial Court has acquitted the respondent no. 2 by relying upon such
minor contradictions which do not go to the root of the case.
Learned Trial Court has also failed to properly appreciate and
interpret the phrase 'soon before her death' which does not mean
immediately before death but is a flexible term and in other words, it
should not be remote in point of time and thereby make it a stale one
and that it should not be given a narrow meaning which would
otherwise defeat the very purpose of the provisions of the Act and
should not lead to absurd results.
9. Learned Counsel has further argued that since at the time of
alleged incident, only accused and victim were in the house, it was
for the accused to explain as to why the deceased died an unnatural
death as there cannot be any independent witness to narrate as to
what had happened inside the house.
10. Learned counsel has further argued that even if it is assumed
for the sake of argument that no offence under Section 304B IPC
was made out, however, there was sufficient evidence before
learned Trial Court to convict the appellant under Section 306 IPC.
11. It is next argued by Ld. Counsel that the death of Pratibha
Panda was otherwise than in normal circumstances as there were
ligature marks on the neck. The death had occurred within 7 years
of marriage and as per the evidence appearing on record, the
deceased was subjected to cruelty and harassment which started
after 15 days of marriage and continued till the death of Pratibha.
The learned Trial Court has, therefore, erred in acquitting the
respondent no.2.
12. It is next argued by Ld. Counsel for the appellant that the
acquittal is simply based upon the arguments advanced by learned
defence counsel which are not tenable as these go against the facts
and evidence available on record. Testimony of PW-5 Gadadhar
Panda proves that there was harassment of the deceased for money.
Statement of PW-8 reveals that there was an apprehension that
deceased would be killed by accused persons and in fact the threat
was also transformed into reality as Pratibha Panda died an
unnatural death on 20.05.2007.
13. Learned counsel has next argued that this was a case of
homicide not suicide. According to learned counsel, the postmortem
report reveals that the ligature mark was minimum 1 CM to
maximum 2.5 CM in breadth whereas the bed-sheet which is alleged
to be and is never of this breadth. In fact, it is much wider and in
that case, the ligature mark is all around the neck. Since the ligature
mark is in front of neck and out of 28 CMs circumference of the
neck, it is only on 13 CMs, therefore, the plea of the accused that it
a case of suicide is false and it is in fact a case under section 304B
IPC.
14. Ld. Counsel has next argued that the postmortem report
clearly states that death is due to ASPHYXIA as a result of
compression of neck structure and the doctor‟s opinion in the post
mortem report substantiates the fact that belt was used for
compressing the neck and that is why the ligature mark is only in a
portion of the neck and that too in the front and this negates the
accused‟s plea that deceased had committed suicide.
15. Ld. Counsel has further argued that accused‟s silence from
12.00 midnight till 10.00 am in the morning, and the admitted
quarrel between the respondent/husband and deceased wife on the
fateful night just before the unnatural death clearly proves that the
death was due to compression of the neck by the accused with his
own belt.
16. Per contra, it is argued by Ld. Counsel for the respondent no.
2 that there is no evidence to show that soon before her death, the
deceased was treated with cruelty in relation to a demand for dowry.
It is further argued that the incidents dated 15.04.2007 and
15.05.2007 had never taken place and except the statement of
interested and motivated witnesses, there is nothing on record to
prove these incidents. The testimonies of witnesses regarding these
incidents are inconsistent and contradictory to each other. It is
further argued that the incident dated 15.04.2007 is not mentioned in
complaint Ex.PW2/A. It is further argued that there is no medical
examination report of alleged beating on 15.04.2007 and spots on
the face. The demand of dowry by way of drafts has also not been
proved. It is submitted that demand drafts were given for the
purpose of making arrangements for the marriage which had to take
place in Cuttack, Orissa whereas family of victim lived in
Chhattisgarh. It is further argued that it is clear from the evidence
and documents on record that neither harassment was caused nor
any demand of dowry was ever made by the accused which may
constitute an offence under Section 498A IPC. Ld. Counsel
submitted that the allegation relating to demand drafts is an
afterthought so as to make a false case of dowry death. It is further
argued that no police complaint about the harassment/dowry
demand/cruelty from the date of marriage till the death of victim
was filed. It is finally argued that reason of suicide by deceased was
not the demand for dowry, but probably it was on account of her not
being able to conceive for 4 years and respondent no. 2 not agreeing
to adopt a child.
17. We have considered the rival contentions and carefully
examined the impugned judgment and the evidence appearing on
record and are of the opinion that learned Trial Court has correctly
appreciated the evidence appearing on record and has rightly held
that there are major contradictions in the statements of all the
material witnesses. The drafts for Rs. 2,50,000/- were, in fact, given
for the purpose of making arrangements for the marriage which was
to take place in Orissa whereas the complainant was residing in
Jharkhand and was unable to make the necessary arrangements.
Thus, the allegation of the prosecution that Rs. 2,50,000/- were
demanded as dowry was not believed by the learned Trial Court and
it has given following reasons for the same:-
"PW 2 further stated that after two months of
marriage, his daughter was sent to Delhi to live
with the accused and accused started giving
beatings to her and also compelled her to do
work and the accused also told her that she had
not brought sufficient money. He deposed that
before marriage accused Dev Prasad Giri, his
mother and aunt (Tai) demanded Rs. 3 lacs and
on this PW 2 inquired them as to who was the
guardian and Dev Prasad Giri told him that his
father is guardian. PW 2 specifically stated that
the matter was settled at Rs. 2,50,000/−, which
he gave by way of draft. However, in his
cross−examination, PW 2 admitted that the
marriage was performed in Orissa and they were
living in Chattisgarh and for making
arrangements for marriage money was required
in Orissa. PW 2 categorically admitted in his
cross−examination that for that arrangements of
marriage he had to sent the money to Orissa by
way of drafts and he issued the drafts as required
by the family of accused. At the one point, in his
examination in chief, the PW 2 deposed that the
accused and his mother demanded dowry of Rs. 3
lacs and that has been settled for Rs. 2,50,000/−,
but in his cross−examination, he has admitted
that the money was sent for arrangement of
marriage by way of drafts. Therefore, there is
contradiction in the statements of PW 2. In
cross−examination PW 2 has not stated that the
money was sent in lieu of the dowry demand.
Therefore, there is force in the contention of
counsel of the accused that it is improbable that
dowry would be taken in the form of drafts."
18. We have also carefully perused the statement of the PW-2
Gadadhar Panda in regard to demand of dowry by the respondent
and found that he has admitted in his cross examination that the
amount was given for making arrangements for the marriage in
Orissa and not as dowry demand.
19. Perusal of the statement of PW-2 Sh. Gadadhar Panda
further reveals that he has deposed that he had met his daughter
lastly on 15.04.2007 in Cuttack, Orissa and he had seen some spots
on her face and on inquiry, his deceased daughter had told him that
these spots were the result of beating given by her mother-in-law
and brother-in-law as they were demanding Rs.1,00,000/-.
However, PW-5 Ms. Kanchan, mother of the deceased, who had
also met her daughter on 15.04.2007 has nowhere stated that there
were pink spots on the face of her daughter and these were there
because of the beating given by the her mother-in-law and Dever
(Brother-in-law). PW-5 Ms. Kanchan has stated that on
15.04.2007, her daughter had told her that she wanted to go to her
parental home and accused had told her (PW-5) that since her
parents have just met her, what was the purpose of going to the
parental home and had also abused her. This is a totally different
version from what has been deposed by PW-2 Sh. Gadadhar Panda.
PW-5 Ms. Kanchan has nowhere stated that her daughter was
beaten on 15.04.2007. Had there been any truth in the statement of
PW-2 Sh. Gadadhar Panda, father of deceased, that her daughter
was beaten and there were pink spots on her face, PW-5 Ms.
Kanchan who had also met deceased on 15.04.2007 must have
noticed this fact without any fail. Learned Trial Court has also dealt
with this contradiction in the statement of witnesses in its judgment
and the relevant observations are as follows:-
"Further, PW 2 stated that he met his
daughter lastly on 15.04.2007 in Cuttack,
Orissa and at that time they had seen some
spots on the face of his daughter and when he
inquired as to how she got those spots and she
told him that she was beaten for Rs. 1 lac and
she was also beaten by her mother−in−law
and dewar. PW 5 Ms. Kanchan, who is the
mother of the deceased also stated that she last
time met her daughter on 15.04.2007 in the
matrimonial home of her daughter. But PW 5,
mother of the deceased stated that on
15.04.2007, her daughter told her that she
wanted to go her parental home and accused
told her that her parents had just met and for
what purpose she wants to go her parental
home and he also abused her. PW 5 further
stated that thereafter, the mother in law stated
that they had said so by joking. She further
deposed that the mother in law, father in law
and husband of her daughter stayed in their
home for one day and thereafter left for
Cuttack, Orissa and they had given the gifts
etc. when they left. Regarding the alleged
incident of 15.04.2007, there is also
contradictions in the testimonies of PW 2 and
PW 5, although, both were stated to have met
their daughter on 15.04.2007. As PW 2
categorically stated that on 15.04.2007, when
he lastly met with his daughter, he had seen
some spots on the face of his daughter and on
inquiry she told him that she was been beaten
for Rs. 1 lac, however, this fact has not been
disclosed by the PW 5 Ms. Kanchan and she
has deposed entirely different version
regarding the incident of 15.04.2007.
Therefore, it creates doubts regarding the
alleged incident of 15.04.2007. PW 2 was also
confronted with the statement Ex. PW 2/A,
given to the police, wherein it was not so
recorded that he had seen spots on the face of
his daughter and on the inquiry she told that
she was given beatings for Rs. 1 lac. PW 2 in
his cross−examination further stated that his
daughter disclosed to him regarding the
incident of 13.04.2007 on 15.04.2007 and at
that time his wife was also with him, but PW 5,
the wife of the PW 2 had not stated so."
20. There are, thus, contradictions in the testimony of PW-5 Ms.
Kanchan for which the learned Trial Court has rightly disbelieved
her. PW-5 has deposed that one day prior to the death of her
daughter, she (her deceased daughter) had made telephonic call to
her and told that she was beaten and there was an attempt to
strangulate her and her cheek was also swollen and she was not able
to eat. However, this fact has not been disclosed by her to the police
in her statement Ex.PW5/DA. Moreover, PW-2 Sh. Gadadhar
Panda, father of the deceased, has not deposed about this fact in his
testimony. Since this fact is quite material as it had taken place just
one day before the alleged unnatural death, it was not possible that
mother of deceased Ms. Kanchan would not have disclosed the same
to her husband. Even if it is believed for the sake of argument that
this fact was not disclosed by PW-5 Ms. Kanchan to her husband
PW-2 Sh. Gadadhar Panda, however, non disclosure of this fact to
the IO in her statement Ex.PW5/DA is beyond comprehension. It is
difficult to believe the fact that PW-5 Ms. Kanchan would not have
told this material fact to all concerned including investigating
officer. The learned Trial Court has also given its reasoning on this
point and it runs as follows:-
"PW 5 Kanchan, mother of the deceased,
deposed that one day prior to 20.05.2007, her
daughter made a telephone call to her and told
that she was beaten and was also tried to be
strangulated and her cheek had swollen and
she was not able to eat, however, in
cross−examination, PW 5 stated that she had
told to the police regarding the aforesaid facts.
PW 5 was confronted with the statement Ex.
PW 5/DA, wherein it was not so recorded."
21. Learned Counsel for the appellant has, however, pointed out
that there was another incident dated 15.05.2007 in which PW-5
Ms. Kanchan has stated that her daughter had told her that she was
beaten on that day (15.05.2007) and when she had inquired as to
why she was beaten, she had told that accused asked her to wake up
early in the morning as he has to go somewhere and she replied that
the person who had to go must be concerned about the time and also
told that she will wake up late in the morning and, therefore, she
was beaten. It is argued by learned counsel for the appellant that the
said incident has not been discussed by the learned Trial Court and
it being a material fact, shows non-application of mind by the
learned Trial Court.
22. We have perused the statement of PW-5 Ms. Kanchan. In her
cross examination, she has given the following statement:-
"I had told the police that my daughter told me
that she was beaten on 15.05.2007 when I
inquired as to why she has been beaten by the
accused, she told me that accused asked her to
wake him up early in the morning as he had to
go somewhere and she replied that the person
who had to go must be concerned about the
time and also told that she will wake late in the
morning and therefore she was beaten.
Confronted with Ex.PW5/DA wherein the
reason of beating and the date is not
mentioned, however, it is mentioned that on
15.05.2007 her daughter was beaten and she
sustained injury on her face and cheek."
23. Perusal of cross examination of PW-5 reveals that she had not
stated to the police about date of incident and reason of her daughter
being beaten. Moreover, PW-2 Sh. Gadadhar Panda has not deposed
anything about this incident of 15.05.2007. There is no medical
examination or police complaint regarding the incident. Perusal of
the record reveals that this fact was never disclosed to the police nor
corroborated by any other witness. Thus, even if the said fact which
is not proved was not discussed by learned Trial Court it does not
affect the findings given by the learned Trial Court.
24. Let us now examine the testimony of PW-8 Surya Kant
Panda who is the brother of the deceased to find out whether
learned trial court has rightly evaluated his testimony. This witness
has deposed that family of the accused had demanded Rs. 3,00,000/-
as part of the dowry but his father had expressed his inability to
arrange such a huge amount but he had finally agreed to pay Rs.
2,50,000/-. This amount was paid in the form of three bank drafts.
In the cross examination, PW-8 Surya Kant Panda has deposed
that the demand of Rs. 2,50,000/- was settled after discussion with
both the sides. His father and mother had gone to Cuttack for talk
and settlement. Whereas father of the deceased PW-2 Gadadhar
Panda has stated in his cross-examination that it was given for
arrangement of marriage. Statement of this witness is, thus, at
variance with the statement of his father regarding purpose for
which amount of Rs. 2,50,000/- was given to the family of the
accused. In fact it is the father of the complainant who had given the
demand drafts and talked to the family of the accused for payment
of amount. His statement is, therefore, more reliable than the
statement of PW-8. In view of the above contradiction, it is difficult
to believe the version of PW-8 and Ld. Trial Court has, therefore,
committed no illegality by not relying upon the same.
25. PW-9 Sh. Alekh Chander Behra is the mediator who had
arranged the marriage of deceased Pratibha Panda and respondent
no. 2 Dev Prasad Giri. He has given a different version regarding
amount of dowry demanded. He has stated that a sum of Rs.
4,00,000/- was demanded by the accused persons whereas PW-5
Ms. Kanchan has stated that it was Rs. 3,00,000/- and PW-2 in his
cross-examination has stated that it was for making arrangement for
the marriage at Orissa. Thus, there is contradiction in the statement
of prosecution witnesses regarding purpose for which amount was
given and there is also contradiction regarding the amount
demanded by the accused persons.
26. Learned Trial Court has also given reasons for not believing
the version of PW-9 and it runs as follows:-
„PW 9, Alekh Chander Behra, who was the
mediator of the marriage, stated that there was
a demand of Rs. 4 lacs from the accused side.
However, PW 2 and PW 5 stated that there
was demand of Rs. 3 lacs from the accused
side before the marriage. PW 8 also stated
that the demand of dowry was around 2.5 lacs
to 3 lacs, therefore, there is contradiction in
the statements of material prosecution
witnesses, regarding the amount of dowry,
alleged to be demanded by the accused side,
which also creates strong doubt about the
prosecution version.‟
27. We do not find any perversity in the appreciation of testimony
of PW-9 as well as other material witnesses by the learned Trial
Court. It was, therefore, rightly held by learned Trial Court that in
view of the contradictions in the testimonies of witnesses regarding
the incidents of cruelty and harassment, the prosecution has failed to
prove its case that deceased was subjected to cruelty for fulfillment
of demand of dowry and this was responsible for her unnatural
death.
28. Learned counsel for the appellant has, however, argued that
the postmortem report, the breadth of ligature mark, the accused‟s
silence from 12.00 midnight till 10.00am with regard to unnatural
death and the admitted quarrel between the accused and deceased on
the fateful night just before the death are sufficient to draw inference
that the unnatural death was due to compression of the neck by the
accused with his belt, whose general size tallies with the size of the
ligature mark.
29. We have given our thoughts to this argument of learned
counsel for the appellant. Perusal of the report Ex.PW6/A authored
by PW6 Dr. Sudeep Singh reveals that PW-6 has categorically
stated in his report and also deposed in the court that in his opinion,
it was a case of suicide. This witness has not been cross-examined.
In this circumstance, we find no merit in the argument of learned
Counsel for the appellant that postmortem report is not correct and
the deceased Pratibha had not committed suicide but was murdered
by respondent no. 2.
30. Learned counsel for the appellant has next argued that in the
instant case there was a telephone call on 19.05.2007 in which the
deceased had told her mother that she was beaten badly and this
proves that harassment of the deceased continued till death. Learned
Counsel has further argued that it can be made out from testimony
of witnesses that dowry was being demanded right from the date of
marriage till death of deceased and different incidents have been
narrated by the witnesses in this regard. However, learned Trial
Court has not rightly appreciated the evidence and given a judgment
which is perverse and not in accordance with law.
31. In support of his argument Ld. Counsel for the appellant has
relied upon the following judgments:-
(i) Yashoda and Anothers V. State Of M.P (2004)3 SCC 98;
(ii) Dilip @ Bidyadhar Pradhan and others Versus State of
Orissa 2002 Cri LJ 1613;
(iii) Balram Prasad Agrawal V. State of Bihar and others
1997SCC(Cri)612;
(iv) Swal Dass Vs. State of Bihar, (1974) 4 SCC 193;
(v) Rajender Singh Vs. State of Punjab.2015SCC171;
(vi) Kashmir Kaur vs. State of Punjab, (2012) 13 SCC 627;
(vii) Narwinder Singh vs. State of Punjab;
32. In „Yashoda and Anothers V. State Of M.P (2004)3 SCC
98' the Hon‟ble Supreme Court has defined words „soon before
death‟ and held that the term "soon before" is not synonymous with
the term "immediately before" and is opposite of the expression
"soon after" as used and understood in Section 114, illustration (a)
of the Evidence Act. These words would imply that the interval
should not be too long between the time of making the statement
and the death.
33. Learned counsel for appellant has next relied on „Rajender
Singh Vs. State of Punjab, (2015) 6 SCC 477' wherein the
Hon‟ble Supreme court has held that "soon before" is a relative
term. In matters of emotions, no one can have a fixed formula. The
time-lag may differ from case to case. This must be kept in mind
while examining each case of dowry death.
34. Learned counsel for the appellant has next relied upon
'Kashmir Kaur vs. State of Punjab, (2012) 13 SCC 627' wherein
the Hon‟ble Supreme Court has held that the expression "soon
before" would normally imply that the interval should not be much
between the cruelty or harassment concerned and the death in
question. There must be existence of a proximate or live link
between the effect of cruelty based on dowry demand and the
concerned death. In other words, it should not be remote in point of
time and, thereby, making it a stale one. However, the expression
"soon before" should not be given a narrow meaning which would
otherwise defeat the very purpose of the provisions of the Act and
should not lead to absurd results.
35. Learned Counsel for the appellant has next relied upon „Dilip
@ Bidyadhar Pradhan and others Versus State of Orissa 2002
Cri LJ 1613', wherein the Hon‟ble Supreme Court has held that in
the case of dowry death, it is difficult to have any direct evidence for
the reason that occurrence takes place inside the house and the
prosecution has, therefore, to rely upon circumstantial evidence to
prove its case.
36. Learned Counsel for the appellant has next relied upon,
'Balram Prasad Agrawal V. State of Bihar and others
1997SCC(Cri)612' wherein it was held by Hon‟ble Supreme Court
that as per section 106 of the Evidence Act, burden of proving the
fact lies on the accused but the initial burden is upon the
prosecution. However, once that burden is discharged, it is for the
accused to prove the fact specifically within his knowledge.
37. We have given our thoughts to the matter. There is no quarrel
with the law laid down by the Hon‟ble Supreme Court in the above
judgments. However, as discussed earlier, the prosecution has failed
to prove that there was demand for dowry and there was consequent
continuous harassment for the same and it continued till the end
when the deceased had committed suicide and, therefore, the
ingredients of section 304B as well as 498A IPC have not been
proved beyond reasonable doubt by the prosecution in the instant
case.
38. Learned counsel for the appellant has, however, argued that in
the alternate, if the prosecution has failed to prove its case under
Section 304B IPC , the appellant can be convicted under section 306
IPC. In this regard, he has relied upon, 'Narwinder Singh vs. State
of Punjab, (2011) 2 SCC 47' where the Hon‟ble Supreme Court
has held as under:-
„21.The High Court upon meticulous scrutiny of
the entire evidence on record rightly concluded
that there was no evidence to indicate the
commission of offence under Section 304-B IPC.
It was also observed that the deceased had
committed suicide due to harassment meted out
to her by the appellant but there was no evidence
on record to suggest that such harassment or
cruelty was made in connection to any dowry
demands. Thus, cruelty or harassment sans any
dowry demands which drives the wife to commit
suicide attracts the offence of `abetment of
suicide' under Section 306 IPC and not Section
304-B IPC which defines the offence and
punishment for `dowry death'.
39. Learned Counsel for the respondent no.2 on the other hand
has argued that there is no material on record to convert the offence
under Section 304-B to 306 IPC in the present case. Section 306 IPC
contemplates that if any person commits suicide, whoever abets the
commission of such suicide, shall be punished with imprisonment of
either description for a term which may extend to ten years, and
shall also be liable to fine. Ld. Counsel for the respondent no.2 has
argued that as per evidence appearing on record there was no
abetment by respondent no.2 to the suicide committed by deceased
Prabibha. He has further argued that it is the duty of the prosecution
to prove beyond reasonable doubt whether deceased Pratibha was
subjected to cruelty or harassment on account of demand of dowry.
As per Section 113-A of the Indian Evidence Act if a married
woman has committed suicide within a period of 07 years from the
date of her marriage and her husband or his relative have subjected
her to cruelty, the Court may presume having regard to the
circumstances of the case that such suicide has been abetted by her
husband or by his relative. In this regard, the learned Counsel for the
appellant no. 2 has, relied upon 'Mangat Ram vs. State of
Haryana, Crl. A.No. 696 of 2009‟ decided on 27.03.2014 wherein
the Hon‟ble Supreme Court has observed that presumption
contemplated in Sec. 113-A of Evidence Act is not mandatory but
discretionary. The Court has held that, under Section 113A of the
Evidence Act, the prosecution has to first establish that the woman
concerned committed suicide within a period of seven years from
the date of her marriage and that her husband has subject her to
cruelty. Even though those facts are established, the Court is not
bound to presume that suicide has been abetted by her
husband. Section 113A, therefore, gives discretion to the Court to
raise such a presumption having regard to all other circumstances of
the case, which means that where the allegation is of cruelty, it can
consider the nature of cruelty to which the woman was subjected,
having regard to the meaning of the word „cruelty‟ in Section 498-
A IPC.
40. Thus, a consideration of all the circumstances of the case may
strengthen the presumption or may dictate the conscience of the
court to abstain from drawing the presumption. The presumption is,
therefore, not an irrebutable one. It can be rebutted by leading
defence evidence or the facts and circumstances otherwise available
on record may destroy the presumption.
41. In the present case it has been proved on record that deceased
Pratibha had committed suicide. The suicide was committed within
a period of 07 years from the date of her marriage. However, it has
not been proved that there was a demand of dowry and that her
husband or his relatives subjected her to any cruelty so that a
presumption can be raised that the suicide was abetted by her
husband. As discussed above, the presumption is not mandatory and
it is only discretionary. The court, therefore, has to consider all the
circumstances of the case. On consideration of all the circumstances
and evidence led on record, we are of the opinion that prosecution
has failed to prove its case and, therefore, no presumption can be
drawn that husband of the deceased had abetted the offence.
42. It was lastly argued by the Ld. Counsel for the appellant that
on the intervening night of 19-20.05.2007, only accused and his
wife were together and in view of Sec. 106 of Evidence Act, it is for
the accused to explain as to why her wife committed suicide.
43. Ld. Counsel for the respondent on the other hand has argued
that Section 106 of the Indian Evidence Act does not relieve the
prosecution from its duty to prove the guilt of the accused beyond
reasonable doubt. In this regard he has relied upon 'Shambhu Nath
Mehra vs. The State of Ajmer, Crl. Appeal no. 65 of 1954‟
decided on 12.03.1956 and 'Sawal Dass vs. State of Bihar, Crl. A.
no. 70 of 1972‟ decided on 09.01.1974.
44. In 'Shambhu Nath Mehra vs. The State of Ajmer' it was
held that in a criminal case, the burden of proof is on the
prosecution and section 106 of Indian Evidence Act is certainly not
intended to relieve the prosecution of its duty to prove the case
beyond reasonable doubt. It is only designed to make certain
exceptional cases in which it would be impossible for the
prosecution to establish the fact which are especially within the
knowledge of the accused and which he could prove without
difficulty or inconvenience.
45. In 'Sawal Dass vs. State of Bihar, Crl. A. no. 70 of 1972‟,
the Hon‟ble Supreme court has held that the burden of proving a
plea specifically set up by an accused which may absolve him from
criminal liability, certainly lies upon him. It is a different matter
that the quantum of evidence by which he may succeed in
discharging his burden or creating a reasonable belief that
circumstance absolving him from criminal liability may have
existed is lower than the burden resting upon the prosecution to
prove the guilt of the accused beyond reasonable doubt.
46. We have given our thoughts to the matter. In the present case,
the fact which can be stated to be specially within the knowledge of
the accused is that the deceased had committed suicide. At best, the
burden of proving the fact that the deceased had committed suicide
and has not been murdered was on the accused. The fact that it was
a suicidal death has been proved by PW-6 Dr. Sukhdeep Singh. The
reason why the deceased committed suicide is not a fact which
would be within the special knowledge of the accused and only the
deceased would be knowing the reason. Even if it is assumed for
the sake of argument that Section 106 of the Indian Evidence Act is
attracted, the accused can succeed in discharging his burden if he
creates reasonable belief that as to why the suicide was committed
by his wife. The accused has led the evidence to discharge the
burden upon him. According to the accused, the reason for
committing suicide by deceased was that she could not bear the
child despite four years of marriage and she wanted to adopt the
child but the accused wanted to wait for some time and, therefore,
altercation used to take place between them. It has come in the
statement of accused that on the fateful night, the couple had not
slept together. It is a settled law that the burden rests upon the
prosecution to establish the guilt of accused beyond reasonable
doubt. It is also a settled law that accused can succeed in
discharging his burden by establishing a reasonable belief, which
means circumstances absolving him from criminal liability may
have existed. In our opinion, the accused has discharged its burden
by leading defence evidence pointing out that the wife was unhappy
as she was unable to conceive and wanted to adopt a child which
was not acceded to by her husband.
47. It is also a well settled law that the High Court should
interfere in appeals against acquittals only where the trial court
makes wrong assumptions of material facts or fails to appreciate the
evidence properly and if two views are reasonably possible from the
evidence on record, one favouring the accused and one against the
accused, the High Court is not expected to reverse the acquittal
merely because it would have taken the view against the accused
had it tried the case. The very fact that two views are possible makes
it clear that the prosecution has not proved the guilt of the accused
beyond reasonable doubt and consequently the accused is entitled to
benefit of doubt. Reliance is placed upon „Bannareddy & Ors. vs.
State of Karnataka & Ors., reported as 2018 (2) Crimes 94 SC'.
48. In the instant case, the Ld. Trial Court has carefully
appreciated the evidence and has taken a reasonable view which has
formed the basis of judgment of acquittal. The conclusion reached
by the Trial Court is neither palpably wrong nor based on erroneous
view of the law. It has taken a very balance view of the evidence.
Ld. Trial Court has correctly held that there are material
contradictions in the statements of the witnesses and the evidence is
such which is not reliable and trustworthy. We are, therefore, of the
opinion that there are no grounds to interfere in the judgment of the
Ld. Trial Court.
49. We, therefore, find no infirmity or illegality in the impugned
Judgment dated 30.07.2012 passed by the learned Trial Court. The
appeal is devoid of merit and is accordingly dismissed. The
impugned Judgment dated 30.07.2012 is therefore, hereby upheld.
50. Accordingly, the present appeal fails and the same is
dismissed.
BRIJESH SETHI
(JUDGE)
SIDDHARTH MRIDUL
(JUDGE)
August 30th, 2019
(AK)
